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T-4606-80
The Queen and Attorney General of Canada (Plaintiffs)
v.
R. Rahoman, N. Devine, G. Springett, M. P. Gravelle, J. M. Stang, S. M. Long, G. Binder and Reggie Frechette, personally and as representa tives of all of those persons who are employed by Her Majesty the Queen in right of Canada in the Public Service of Canada and who are members of the Public Service Alliance of Canada except those who are members of the Clerical and Regulatory Group who are not designated pursu ant to section 79 of the Public Service Staff Relations Act (Defendants)
Trial Division, Walsh J.—Ottawa, October 7 and 8, 1980.
Prerogative writs Interim injunction — Labour relations
Plaintiffs move for an interim injunction enjoining defend ants, who are members of bargaining units represented by Public Service Alliance of Canada, and who are subject to existing collective agreements, from striking illegally in sup port of the striking clerical and regulatory group — With drawal of services by defendants could result in irreparable harm to members of the Canadian public and to the operations
of the Government of Canada Whether the fact that the Public Service Staff Relations Act provides penalties for breach of its provisions excludes the issue of an injunction
Motion allowed Public Service Staff Relations Act, R.S.C. 1970, c. P-35, ss. 79, 101(1)(c),(2)(a), 103, 104 — Criminal Records Act, R.S.C. 1970 (1st Supp.), c. 12, s. 3 — Federal Court Rule 469(2).
Plaintiffs move for an interim injunction enjoining defend ants from engaging in an illegal strike. The defendants belong to bargaining units represented by Public Service Alliance of Canada (P.S.A.C.) and are presently bound by collective agree ment. The President of P.S.A.C. requested its members to honour the picket lines of the striking clerical and regulatory group. Withdrawal of defendants' services could result in irreparable harm to members of the Canadian public, and to the operations of the Government of Canada. The Public Service Staff Relations Board declared that the strike of all those bargaining units of its membership except the clerical and regulatory group was unlawful. Defendants contend that since the Public Service Staff Relations Act provides penalties for breach of its provisions, a civil injunction, the infringement of which would lead to other penalties and hence is a quasi-crimi nal proceeding, should not be issued. The issue is whether or not an infringement of section 101 of the Act is a crime, which excludes the issue of an injunction.
Held, the motion is allowed. The jurisprudence indicates that it is concerted illegal action by members of a bargaining group which may be enjoined to return to work, rather than an individual who cannot be so enjoined. The members of the bargaining groups participating in an illegal strike are enjoined from engaging in concerted illegal withdrawal of services with other members of the groups.
International Brotherhood of Electrical Workers, Local Union 2085 v. Winnipeg Builders' Exchange [1967] S.C.R. 628, applied. Local 273, International Longshore- men's Association v. Maritime Employers' Association [1979] 1 S.C.R. 120, applied. Robinson v. Adams (1924- 25) 56 O.L.R. 217, referred to. Rubenstein v. Kumer [1940] O.W.N. 153, referred to. Dallas v. Felek [1934] O.W.N. 247, referred to. Commission de transport de la Communauté urbaine de Montréal v. Syndicat du Trans port de Montréal (C.S.N.) [1974] S.C. 227 reversed [1977] C.A. 476, distinguished.
MOTION. COUNSEL:
D. Friesen and D. Kubesh for plaintiffs. L. M. Joyal, Q.C. for defendants.
SOLICITORS:
Deputy Attorney General of Canada for plaintiffs.
Honeywell, Wotherspoon, Ottawa, for defendants.
The following are the reasons for order ren dered in English by
WALSH J.: Plaintiffs move (a) for an interim injunction enjoining and restraining the persons who are employed by Her Majesty the Queen in right of Canada in the Public Service of Canada and who are members of the Public Service Alliance of Canada except those who are members of the clerical and regulatory group who are not designated pursuant to section 79 of the Public Service Staff Relations Act, R.S.C. 1970, c. P-35, from engaging in a strike in contravention of para graph 101(1)(c) * of the Public Service Staff Relations Act.
(b) in the alternative for an interlocutory injunc tion until the trial of this action in the same terms pursuant to paragraph 469(2) of the Federal Court Rules.
* This should read 101(2)(a) as it appears in the corrected order.
(c) in the further alternative for such further order as to the Court may seem just and expedient.
Permission was given to bring on the hearing on short notice and some of the named defendants were served, and defendants were represented by counsel at the hearing.
Plaintiffs' application was supported by three affidavits. That of Sandra Helen Kendall Budd who states that in 1978 she was a staff relations officer in the Department of Veterans Affairs and as such familiar with problems arising from a strike of the nursing group of the Professional Institute of the Public Service which provided nursing services inter alia in veterans hospitals and penitentiaries. Problems arose when members of various other groups represented by the Public Service Alliance of Canada did not cross the picket lines of the nursing group, thereby precipitating an illegal strike, which disrupted patient care, endan gering the health and safety of patients. The affidavit states that the Public Service Alliance of Canada continues to represent the bargaining units involved in the said illegal strike which units are bound by collective agreements currently in effect and that the named defendants are members of the data processing group, a bargaining unit represent ed by the said Public Service Alliance and present ly bound by a collective agreement.
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An affidavit of Hubert McShane, Director of Collective Bargaining for the Treasury Board which represents Her Majesty the Queen, the employer of all persons employed in the Public Service of Canada, states that on October 3, 1980, shortly after 11:00 p.m. he saw Andrew I. Stewart whom he personally knows to be President of the said Public Service Alliance of Canada on a televi sion news broadcast on C.T.V. channel 7 in Ottawa issuing a statement at a press conference held earlier that day in the course of which he said:
I have no alternative today but to request all members of the Public Service Alliance of Canada as of midnight on Sunday to honour the clerks' picket lines and to give all possible support to the clerks to secure a fair settlement to this dispute.
This affidavit also refers to the 1978 illegal strike of members of the P.S.A.C. employed in veterans hospitals including orderlies and kitchen staff as a result of which patients were for some time left unattended and without meals. It states that on occasion of prior illegal strikes of the P.S.A.C., members have honoured their contracts when called upon by members of the national executive to do so, and that therefore he has reason to believe that when called upon to breach their contracts they will do so.
The affidavit of Eric Anthony Bowie, Director of the Civil Litigation Branch of the Department of Justice states that he has read these affidavits and has also been informed by other officers of the Treasury Board including its Secretary that the potential consequences of a withdrawal of defend ants' services would include the disruption of vital services which would affect the safety of air and marine traffic throughout Canada, the health and care of patients in hospitals operated by the Department of Veterans Affairs and the security of the federal penitentiary system, and the prepa ration and distribution of cheques for old age pensioners, welfare recipients and unemployment insurance recipients, all of which would cause irreparable harm to members of the Canadian public and to operations of the Government of Canada.
Furthermore the Public Service Staff Relations Board at a hearing on Saturday, October 4, 1980, made a declaration pursuant to section 103 of the Public Service Staff Relations Act to the effect that the Public Service Alliance of Canada had authorized a strike of all of those bargaining units in its membership, other than the clerical and regulatory group, which would be unlawful as being contrary to the provisions of section 101 of the Public Service Staff Relations Act.
The affidavit further states that in none of the radio newscasts to which he listened on Sunday, October 5, was there any retraction of Mr. Andrew Stewart's statement of October 3, nor any such retraction by any other officer of the Alliance respecting the 40 bargaining units of the Alliance which were the subject of the order of the Public
Service Staff Relations Board to honour their con tracts. He therefore has reason to believe that not only have a substantial number of employees, members of the Alliance who are not in a legal position to strike, already withheld their services for several days but there is reason to fear that they will do so during the next several days.
Two further affidavits were produced at the opening of the hearing by plaintiffs and a brief adjournment was taken to enable the Court and defendants' counsel to examine them. One by Keith Mattson, Manager of Safety and Security, Transport Canada at Toronto International Air port states that inter alia he supervises the work of the airport emergency services (fire fighters). On the evening of October 5, 1980 he learned that there might be a withdrawal of services by the fire fighters' morning shift, so at 7:00 a.m. October 6, he visited the fire hall and told the night shift that in that event they would be required to remain on duty and that any attempt to withdraw services would contravene the Public Service Staff Rela tions Act. The 8:00 a.m. shift failed to report for duty and at 9:30 a.m. he attended a local restau rant where he learned they were congregated and spoke to Dennis Fortin, the Crew Chief. They have a collective agreement running from June 24, 1980 to January 3, 1982. Mr. Fortin allegedly said that a picketer had stopped them from entering and Mr. Mattson advised him that there was another unpicketed entrance, and moreover that an escort would be available. Mr. Fortin advised that the group had decided not to report for duty. The night shift which had been advised to remain on duty departed at 8:00 a.m. On the same day certain other members of airport staff including air field maintenance, electrical staff and telecom munications staff failed to report, but it was the absence of the fire fighters which forced the air port to close.
The affidavit of George Donald Fraser, Plant Manager of the Gateway Postal Facility in Missis- sauga which handles 49% of Canada's mail includ ing the greater part of international mail states that of 2,900 people employed there, 120 are
clerks, members of the P.S.A.C. and 282 are main tenance craftsmen, members of the P.S.A.C. (gen- eral labour and trades group (G.L. & T.)). Of the 22 members of G.L. & T. scheduled to report at 23:30 hours on October 5, 1980, only 6 reported of whom 3 left at 04:00 before completion of their shift. Their functions include starting all mech anized parcel sorting equipment and surveying the operation of it. Prior to 23:30 hours on October 6 the power had been shut off by a member of the prior shift, Pacific Burke, and there were insuffi cient G.L. & T. members to reactivate it. On the morning shift on October 6, 1980, 37 G.L. & T. members were required to report but only 4 did so. As a result bulk mail cannot be handled and there are already 37 heavy duty tractor trailers fully loaded in the yard, and about 50 more expected daily from which mail cannot be brought into the plant. Various named officers of the G.L. & T. group and members of it are on the picket line. As a result the plant has had to be closed although it could operate if even 12 tradesmen reported for duty.
Defendants submitted no proof and in fact do not deny that members of other units of the Public Service Alliance of Canada are engaging in illegal sympathy strikes in support of the members of the clerical and regulatory group who are legally on strike. Their sole argument is a technical legal one, based on the fact that since the Public Service Staff Relations Act provides penalties for breach of its provisions, a civil injunction should not be issued, the infringement of which would lead to other penalties and hence is a quasi-criminal pro ceeding. Reliance was placed on the old cases of Robinson v. Adams (1924-25) 56 O.L.R. 217 which held at page 224 "The equitable jurisdiction of a civil court cannot properly be invoked to suppress crime", the case of Rubenstein v. Kumer [1940] O.W.N. 153, and the case of Dallas v. Felek [1934] O.W.N. 247 which followed the Robinson case.
Defendants' counsel submitted that section 104 of the Public Service Staff Relations Act refers to any contravention of section 101 as an "offence" punishable on summary conviction and he equates this to a crime, and refers to section 3 of the Criminal Records Act, R.S.C. 1970 (1st Supp.), c. 12 which states, "A person who has been convicted of an offence under an Act of the Parliament of Canada or a regulation made thereunder may make application for a pardon in respect of that offence" as indicating that a criminal record is created and that therefore an infringement of sec tion 101 is a crime.
In the case of Commission de transport de la Communauté urbaine de Montréal v. Syndicat du Transport de Montréal (C.S.N.) [1974] S.C. 227 which dealt with the imposition of penalties for defiance of an injunction ordering a return to work Chief Justice Deschênes, after reviewing jurispru dence, concluded that this constituted criminal contempt as distinct from civil contempt and that provisions of Quebec civil law could not be extend ed to criminal matters as unconstitutional. He therefore declared that he was without jurisdiction to apply penalties to enforce the injunction. This judgment was however unanimously reversed by the Quebec Court of Appeal in a judgment report ed in [1977] C.A. 476 which held that the Supe rior Court has an inherent jurisdiction to hear applications for contempt for defiance of orders it has rendered in civil matters, even if this has a certain criminal connotation, and that the applica tion for contempt forms part of the civil nature of the proceedings from which it arose. In the present case, since the injunction is being issued by the Federal Court there is no constitutional issue, and I would be most reluctant to find that, as defend ants argue, because penalties have been imposed for illegal withdrawal of services in the Public Service Staff Relations Act, this excludes the use of the more expeditious and effective remedy of an injunction, especially since, as counsel for defend ants admits, the penalties imposable under the said Act are very moderate. It is unlikely that in present conditions they have any strong deterrent effect to prevent illegal conduct.
Nevertheless the jurisprudence of the Ontario Court of Appeal in the Robinson and Dallas cases
(supra) would be persuasive were it not for certain subsequent Supreme Court jurisprudence. In the case of International Brotherhood of Electrical Workers, Local Union 2085 v. Winnipeg Builders' Exchange [1967] S.C.R. 628, the matter in issue was an application for an injunction arising out of a section of the Manitoba The Labour Relations Act seeking to order striking employees to return to work, the strike being contrary to section 22(1)(b) of that Act and to their collective agree ment. Chief Justice Cartwright stated at pages 640-641:
In my view the purposes of the Labour Relations Act would be in large measure defeated if the Court were to say that it is powerless to restrain the continuation of a strike engaged in direct violation of the terms of a collective agreement binding on the striking employees and in breach of the express provi sions of the Act. The ratio of such decisions as Lumley v. Wagner, supra, does not, in my opinion, require us so to hold. There is a real difference between saying to one individual that he must go on working for another individual and saying to a group bound by a collective agreement that they must not take concerted action to break this contract and to disobey the statute law of the province. Undoubtedly, as Freedman J.A. points out, an effect of the order which has been upheld by the Court of Appeal in the case at bar was to require the striking employees to return to work. In my opinion that constituted no error in law; to hold otherwise would be to render illusory the protection afforded to the parties by a collective agreement and by the statute. It is true that an employer whose operations are brought to a standstill by an illegal strike or a union whose employees are rendered idle by an illegal lockout may bring an action for damages or seek to invoke the penal provisions of the Labour Relations Act but the inevitable delay in reaching a final adjudication in such procedures would have the result that any really effective remedy was denied to the injured party.
See also Local 273, International Longshoremen's Association v. Maritime Employers' Association [1979] 1 S.C.R. 120, the headnote of which at page 121 reads in part:
Refusal to cross the picket line of another union cannot be a strike unless it falls within the definition of "strike". Parlia ment has adopted an objective definition of "strike" the ele ments of which are a cessation of work "in combination", in "concert" "in accordance with a common understanding". The motive is of no import, as long as there is a cessation of work pursuant to a common understanding. Here the definition is in substance the same in the contracts as in the statute. The common understanding may be considered as resulting from the very union solidarity which forbids the crossing of picket lines.
Since the jurisprudence does indicate however that it is concerted illegal action by members of a
bargaining group which may be enjoined to return to work, rather than an individual who cannot be so enjoined, and the present proceedings are directed against the members of the bargaining groups participating in an illegal strike, rather than against the groups themselves, I am wording the order so as to enjoin the members from engag ing in concerted illegal withdrawal of services with other members of the groups. There is ample evidence to indicate that this has taken place and that the decisions were not made on an individual basis but on the recommendations of union officers.
Certain fundamental principles bear reiterating since they go far beyond the issues raised in the present industrial dispute.
The first and by far the most important is the necessity for all persons or groups of persons to be guided by the rule of law. If it were not for the rule of law, civilization, as we know it, would perish and we would revert to savagery and the law of the jungle.
No person or group of persons acting in concert has any right whatsoever to refuse to obey the law, or to contend that because he or they consider the law unjust or repressive they are not bound by it and will not obey it. To admit such a proposition would be to revert to a state of anarchy with every man or woman deciding for himself or herself what is right or wrong. The doctrine that "might is right" must be energetically rejected by every right-thinking person. It was the basis of Hitler's self-justification for invading countries helpless to defend themselves, and is the basis on which all dictatorships and oppressive regimes operate, and should never be tolerated.
Laws are made by Parliament in our system and can only be amended or repealed by Parliament. The courts of the country are obliged to apply them and not to enter into any consideration of whether they are good or bad laws.
As a corollary it follows that a rigid distinction must be made between legal and illegal strikes, and even during a legal strike, illegal conduct of the striking group cannot be tolerated and exces sive picketing, intimidation or violence can always properly be restrained by injunctions. Illegal
strikes of bargaining groups during the existence of a valid collective agreement can also be so restrained, and certainly any inciting by members of a group engaged in a legal strike, of members of other bargaining units to engage in an illegal strike and hence to break the law cannot be condoned, nor can the inciting of members of a bargaining unit legally on strike, but who themselves are obliged to continue work, being designated employees pursuant, in the present case, to section 79 of the Public Service Staff Relations Act be permitted in contravention of the law.
Whatever may be the strong feelings of other bargaining units of the Public Service Alliance of Canada of the justice of the cause of the members of the clerical and regulatory group who are legal ly on strike, this does not give them the right to participate in a supporting strike, despite the find ing of the Public Service Staff Relations Board that such a strike would be illegal, and they can properly be restrained from doing so by injunction, which will therefore be issued.
 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.